‘Free’ labour was preceded by forced labour and force was used to create ‘free’ labour. The producer had to be separated from his means of production, land. Capitalism was born out of the womb of feudalism. Feudalism tied the serf to land. Capitalism ‘freed’ him from land and turned his muscle power to a commodity for sale on the labour market. He was free to sell his labour or starve. There is freedom to work or not to work.

You may even have a right to work, as we have in our Constitution, but no one has an obligation to give you work. The Court of Appeal pronounced in the case of Timothi Kaare v. Mara Co-operative Union that the right to work ‘by its very nature cannot be absolute.’ The High Court further qualified the right to work. Article 22(1) which provides for the right to work, the judge said, is qualified by Article 11(1) which stipulates that the ‘State shall, within the limits of its economic capacity, make adequate provisions for securing the right to work …’. When the Court talks about the right being limited ‘by its very nature’, it is talking about the ‘capitalist nature’ of work and the ‘economic capacity’ of the State to secure the right is also determined by the capitalist system. Capitalism by definition needs an army of unemployed, the so-called industrial reserve army, by which it ensures control of wages, curbs labour militancy and upon which it can draw during booms, and to which it can throw out workers during bursts.

Creation of ‘free’ labour is one side of the story. The other side of the story is the creation of land as capital. Just as labour, by nature, is not a commodity so land, by nature, is not capital Hernando De Sotto’s mysterious discovery of ‘dead capital’ in non-Western countries worth trillions of dollars is a fantasy! Capital is not a thing. It is a relation. That is elementary political economy. Land becomes capital only under certain conditions and within certain relations of production and economic system. The first condition is to establish a monopoly of access to land called ownership. The second condition is that it must be negotiable.

Ownership is not a relation between a person and a thing. It is a relation between a person and a person. Ownership of land means that the owner can exclude others from access to it. My right to own a piece of land means my right to exclude you from it. And when the State guarantees my right to own, it undertakes to exclude others from it by law, meaning disguised force.

Negotiability of land can only be assured by separating possession from ownership. That is done by issuing a title, a paper representation of my ownership. Armed with a title an owner can pass his right to own and his right to exclude any one else. Just as the State guarantees my ownership, so it enables the transfer of my ownership through a system of registration. BwanaPesa X sells a coffee farm in Meru at a profit to Moneybag Y in London who transfers it at a profit again to Goldenberg Z in Washington without any one of them having ever possessed or seen the farm while all of them have used land as capital. The State guarantees the title and the integrity of the sale through law backed by force. Law and force are like a ring to the finger. But before the Moneybags can have their land as capital, they must get rid of those who are using land as means of subsistence to feed their families. That process is also accomplished by force, naked force.

Opposing Government proposals based on the recommendation of the East African Royal Commission (1953-55) which had recommended individualization, registration and titling of customary lands – something very similar to what De Soto was to say half a century later, albeit in a somewhat mystified language – Mwalimu Nyerere wrote in 1958 that land ‘is simply God’s gift to His living creation.’ The article was significantly titled ‘Mali ya Taifa’ or ‘National Property.’ A High Court judge in the case of Tanganyika Cigarette Company, tells us that ‘normally, in my view, it is the Government which is the custodian of national interest.’ In bourgeois jurisprudence, ‘nation’ is often conflated with ‘state’ which means ‘national property’ meant ‘state property’. That is exactly what the Land Ordinance of 1923 did.  That is what precisely Mwalimu was defending. Mwalimu was a politician, not a political economist. He did not explain how a gift of God became property in the first place, and state property, in the second place.

A 19^th century French anarchist Proudhon roared, ‘Property is theft.’ Marx corrected him. Original property was not only theft but robbery, that is, stealing accompanied by force, as lawyers would define robbery. Marx called it primitive accumulation, in the sense of original accumulation. In the process of primitive accumulation, which included the gruesome slave trade and ruthless colonialism, force was the dominant agency. Force was the midwife of the birth of capitalism. ‘..capitalism comes dripping from head to foot, from every pore, with blood and dirt.’ Original robbery accomplished, ‘Freedom, Equality, Property and Bentham’ (Marx’s phrase) took over. Owners of commodity-capital and commodity-labour-power meet on the market and supposedly exchange equivalents as if they were free to do so; as if they were equal, as if both owned their property; and both driven by Benthamite self-interest. This is what Marx called ‘expanded reproduction’, meaning accumulation of capital by appropriating surplus value in the place of production, and realizing it through the process of exchange of commodities, on the market. Theoretically, this is supposed to be regulated by a purely economic process. In practice, of course, there is a lot of fraud, cheating, deception and forceful expropriation.